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C.R. Bard Inc. won a $702,322 jury award that could mushroom to $2.1 million if a federal judge decides rival U.S. Surgical Corp. willfully violated Bard’s patent for a method of repairing hernias. A federal jury in Delaware on Nov. 3 concluded that Norwalk, Conn.-based U.S. Surgical misappropriated Bard’s idea for using a flexible fabric as a plug to repair hernias. Bard had filed suit in May 1999 contending that U.S. Surgical’s SurgiPro HerniaMate Plug used technology protected by a 1994 patent assigned to Bard. The verdict is Bard’s second significant patent victory in less than a month. On Oct. 9 Boston Scientific Corp. paid Bard $13.3 million after exhausting its appeals of a 1997 jury verdict. That jury had found that Boston Scientific violated Bard’s patent for an esophageal medical device. “The [U.S. Surgical] jury got it right, but I couldn’t single out a particular factor in the case that led to their decision,” said Peter Ellis, who represented Bard. Ellis is with Boston’s Foley Hoag & Eliot. A four-man, five-woman jury deliberated about an hour before deciding that U.S. Surgical officials intentionally infringed on Bard’s patented method for the so-called hernia plug. Judge Roderick McKelvie of the U.S. District of Delaware now must decide whether to triple the damage award. “Bard invested an awful lot of time and resources on educating and training surgeons to use this new method,” Ellis told jurors during the trial. U.S. Surgical “was caught red-handed” misappropriating the method, Ellis added. U.S. Surgical’s attorneys countered that there was no infringement and that Bard was attempting to unfairly keep U.S. Surgical out of the hernia plug market. “Bard’s case is overwhelmingly smoke and mirrors [and] our product is different,” Eric Lobenfeld of New York’s Chadbourne & Parke said on behalf of U.S. Surgical. Ellis said that two experts testified for plaintiffs: Dr. Keith Millikan of Chicago, a medical expert, and Dr. Marion Stewart of New York, an economist who testified on damages. Ellis said the jury awarded Bard the amount of damages it had sought. Ellis said he expects U.S. Surgical to file post-trial motions seeking a new trial or asking the judge to throw out the jury’s verdict. Along with Lobenfeld, U.S. Surgical was represented by Andre Bouchard of Wilmington, Del.’s Bouchard Margules & Friedlander. Bard’s local counsel was Jack B. Blumenfeld of Wilmington’s Morris Nichols Arsht & Tunnell. Bard, based in Murray Hill, N.J., is a leading worldwide developer and manufacturer of health care products including vascular, urology, oncology and surgical specialty products. The case is C.R. Bard Inc., et. al. v. United States Surgical Corp., No. 99-286-RRM.

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